On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Fritz, Polow and Joelson. The opinion of the court was delivered by Polow, J.A.D. Joelson, J.A.D., concurring. Fritz, P.J.A.D. (dissenting).
An Essex County trial jury found defendant, as an accomplice, guilty of assault with intent to rob and aiding and assisting the escape of the actual perpetrators of the crime. She was sentenced to 18 months in the Essex County Correction Center, one year of which was suspended in favor of a probationary term.
Three prosecution witnesses, Gloria Larkin, Charles Sutton and Weldon Grady, identified defendant as the driver of the purported getaway vehicle, a gold or yellow Volkswagen, based upon observations from apartment windows at about four o'clock in the morning. On cross-examination Larkin conceded that she was unable to carefully observe the driver of the vehicle but positively identified the car as the vehicle she had seen defendant driving earlier in the day. Grady identified the scarf worn by the driver as similar to the one defendant had worn earlier in the evening. Sutton modified his direct testimony identifying defendant as the driver by his statement on cross-examination that he did not see defendant driving the vehicle although the driver was a young woman. Defendant
denied her presence in the vehicle at the time of the offense and produced three corroborative witnesses. The testimony of each, including her mother and brother, lent varying degrees of support to defendant's claim that she was home in bed when the crime was committed.
Upon the State's application the court excluded the use of prior convictions to attack the credibility of Larkin and Sutton. The trial judge, concluding that State v. Sands , 76 N.J. 127 (1978), vested him with such discretionary authority, ruled that the respective five- and eight-year-old narcotics convictions were too remote and thus inadmissible. Defendant disagrees and argues that the discretion authorized by Sands applies only to a defendant as a witness in a criminal trial and that in any event the trial judge erred in declaring the convictions too remote. She contends that had she been allowed to elicit testimony regarding the two witnesses' prior convictions, "their credibility -- weak as it was -- would have been destroyed in the minds of the jurors." Since the only evidence of her involvement was contained in the testimony of the three prosecution witnesses who identified her as the driver, and since Grady admitted on cross-examination that he "lied" to police in reporting that he had seen nothing, we conclude that if the excluded testimony had been introduced, the jury may have arrived at a result it otherwise might not have reached. Under the circumstances, we are satisfied that the prior criminal convictions of Larkin and Sutton should not have been excluded. Accordingly, we reverse and remand for a new trial.
N.J.S.A. 2A:81-12 provides in pertinent part:
For the purpose of affecting the credibility of any witness , . . . his conviction of any crime may be shown by examination or otherwise . . . . [Emphasis supplied]
As acknowledged by both sides, the statute's applicability clearly is not limited solely to the defendant in a criminal trial. Rather, the provision applies to all witnesses. In Sands , of course, the Supreme Court ultimately addressed the problem in the context of use of prior criminal convictions against a
defendant charged with a criminal offense. Still, the scope of the discussion contained in both the majority and concurring opinions goes beyond concern for the rights of a criminal defendant. Both opinions examine the generally broad discretion of a trial judge "in controlling the scope of cross-examination to test credibility." State v. Sands, supra , 76 N.J. at 140, 148. See American Paint v. Public Serv. Elec. & Gas Co. , 163 N.J. Super. 210 (Law Div. 1978). The Sands court specifically overruled State v. Hawthorne , 49 N.J. 130 (1967), which had theretofore provided authority for use of prior criminal convictions, regardless of their age, "to affect credibility." Id. at 140. The Sands ruling is, by its own terms, specifically applicable to the criminal defendant by the statement, "We hold that whether a prior conviction may be admitted into evidence against a criminal defendant rests within the sound discretion of the trial judge . . . ." State v. Sands, supra , 76 N.J. at 144 (emphasis added). Nevertheless, we conclude that Sands was intended to authorize exclusion of prior convictions to affect witnesses' credibility where their probative value is outweighed by a substantial danger of prejudice, undue consumption of time or confusion. Evid.R. 4; State v. Harkins , 177 N.J. Super. 397, 403 (App.Div.1981). For the reasons stated below, we are unable to discern a basis for exercise of discretion to exclude the prior convictions in these circumstances, grounded on a substantial danger of prejudice, delay or confusion.
In Sands certification was granted specifically for the purpose of reexamining Hawthorne. Both cases involved the applicability of the statutory authorization to use prior criminal convictions of a defendant in a criminal trial "for the purpose of affecting . . . credibility." Id. at 139. The concern expressed in Sands and the motivation for its holding was that admissibility of criminal defendants' prior convictions "unquestionably discourages many defendants from taking the stand." Id. at 142. On the other hand, by providing discretion in the trial judge, a fairer trial for the defendant may be insured "by allowing exclusion of a remotely related conviction with its tendency to
lead the jury to believe that defendant has a criminal ...